Page 215 - Albanian law on entrepreuners and companies - text with with commentary

Moreover, it is supposed that the public interest in these services can be better and more
cheaply reached if they are run as private enterprises. However, this has proved to be true
only if de-regulation, on the one side, is accompanied by re-regulation on the other, meaning
the establishment of functioning public monitoring and supervising agencies which have the
right to interfere in case of failures and distortions. In this respect, above all re-
monopolization on the private level is a risk to be faced by legal intervention.
One aspect of this debate should be mentioned here in particular. It regards the common
practice of many Members States to give public authorities special rights in companies with a
particular public interest. This phenomenon generally addressed by the term ‘golden shares’
has recently become subject of decisions of the ECJ which set the limits of such special rights
in the light of the Freedom of Capital Movement, Article 63 TFEU (ex-Article 56 TEC). 208 So
the ECJ’s initiative to free the Internal Market and the movement of companies from Member
States’ interventions not only refers to the Freedom of Establishment of Article 49 TFEU (ex-
209
Article 43 TEC) and respective barriers created by Member States policies, but also to the
Freedom of Capital. (Cross-border) share-holdings in companies are part of the movement of
capital. According to the ECJ, this also includes to participate in the actual administration and
control of the company. Based on this principle, the barriers created by Member States against
the participation of foreign investors in important local firms by establishing special legal or
statutory rights for Member State shareholders or by creating special authorization
requirements have been thoroughly limited. Any restriction is only legitimized if it is non-
discriminatory, based on constraints deriving from general (public) interests, appropriate to
reach its goal, and not exceeding the necessary level of intervention. 210
The pressure exercised by the EU on Member States in this respect is well documented
by the German case of the ‘Volkswagen Law’ of the late 1950s which had produced ‘special
company law’ and has recently come under attack by the EU Commission for its special rules
regarding a maximum voting right (20%) and special qualified majorities (80%) which try to
prevent capital concentrations from realizing their interest against the broadly employee-
owned capital of the Volkswagen AG. Also, the Federal State and the Region of Lower
Saxony had each the right to appoint two members of the Supervisory Board. The ECJ
confirmed here that constraints which violate the Freedom of Capital Movement can also
come from national company laws that the Volkswagen Law set special rules for. 211
Recent developments show an interesting ‘double standard’ in the EU here. While
‘golden shares’ have been slowly and gradually dismantled in the frame of the Internal
Market, the EU Commission is now considering to allow the introduction of such ‘golden
shares’ for Member State authorities in important European companies in order to limit the
influence of ‘extra-communitarian’ enterprises in such companies. It shows that the

208 See Cases C-367/98, C-483/99, C-503/99, C 174/04, C 282 and 283/04..
209 See the debate on the ‘real seat doctrine’ and on national restrictions for (foreign) company operation reflected by
above Comments to Article 8.
210 This is the so-called ‘Gebhardt formula’ established by the ECJ in C-55/94, ‘Gebhardt’.
211 See Case 112/05.
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